The atrocities being committed by Israel continue in Gaza and in occupied Palestine despite warnings we are witnessing genocide. Does the position of a legal scholar give you understanding and power or a more thorough feeling of hopelessness?

Many of us have entered the field of international law lead by a deep feeling of injustice. I began studying laws of war at the university in Jordan. At a competition I attended I saw how international humanitarian law was applied. I realized it had not been made for us. It describes an experience different from ours. The practitioners of this law are military experts from the US and Israel while our voice is ignored. This has been clear from the start. I continued studying international economic law and returned to humanitarian law.

So we are aware that this body of law is incomplete. We enter from a critical perspective knowing that the history and the making of this law were determined by colonization. We understand that the law remains politically shaped.

However, we engage with it because we need to know it – Israel uses the language of international law to justify its actions. And secondly, international law is based on some ideals of justice that give it international legitimacy. The Charter of the United Nations starts with principles that everybody is to be protected from the scourge of war and ensured equality.

Therefore, our perspective on international law is specific. We are disheartened. We see exceptionalism. Even the law that is imperfect is not applied to Israel’s actions. Nonetheless, we hope for a shift in narrative. Israel cannot use this body of law, which it disrespects so flagrantly.

Yes, it is very frustrating and we can read this from the faces of the UN staff and other experts, from the faces of people who have lost family members. The frustration is also the result of always having to translate yourself and explain your agony. However, we want to push our reading of the law forward and use the case of Palestine as an anchor and a starting point for a rethink aiming for greater justice. It demands a lot of hopefulness and a lot of will. We can just hope we have enough and that we do not give up – because that is what the other side wants.

You mentioned the military experts who position and interpret the law. Is international law just another public “space” taken over by special interests or have lawyers and legal experts cynically cast away its ideals?

The constitutive role of politics makes international law inherently indeterminate. Justice always yields to the political logic. Many lawyers work under the political banner casting justice aside. But this is foremost and in its core a question of justice.

Lawyers instrumentalize international law into a political tool. This makes it fragile and its reading very positivist and fragmented. Currently this can be seen in how every single attack is analyzed in detail, weighing its legitimacy, while overlooked is the context and ignored are other rules of international law, for example the right of people to self-determination.   

Moreover, the history how international law was created shows the voices of the states of the Global South that were under colonial domination, similar to the present situation in Palestine, were ignored. In the 1960s and 1970s after they won their independence they rose to the stage asking for their experiences and positions to be incorporated into the body of international law. Their requests were ignored. One of the consequences is the continuing failure of the international humanitarian law to incorporate how colonisation and domination work.

The relations between Palestine and Israel cannot be described as war. We have one party dominating another: we have one of the most advanced militaries in the world backed by the most advanced military in the world against a population that has been subjugated for the past 75 years.

Lastly, it is worth mentioning the phenomenon of war-lawyering. It describes lawyers’ ever closer and deeper cooperation with military experts. Israel has incorporated legal experts into the decision-making and planning of attacks so that it has the legal language and arguments ready to justify its actions: through zooming-in and instrumentalising international legal expressions. Their actions in this ‘law-fare’ have gone so far that international humanitarian law has become absurd and the whole legal framework has been undermined.

You use the pronoun us – who is us? Does it reach beyond Palestinians, all oppressed people?

I was born and raised in Jordan. My grandmother was Palestinian but she died before I could hear her tell stories. The history of displacement reaches my great-grandfather who died in 1948 during the war. My grandma was forced to flee in 1967 pregnant with my mother.

However, I do not feel this is the reason why I talk about these issues. Us are all who associate with the Palestinian cause as a cause for justice. The critical theory I teach describes us as people who associate, empathize with and intuitively comprehend the oppression of the Palestinians. It is not only the oppressed. It is all who can conceptualize and understand what domination and oppression are. My colleagues come from different backgrounds and they use us to show a collective feeling of the Palestinian pain and that Palestine is a manifestation of a bigger problem of the international legal order. It relates to the movement Third World approaches to international law that has been among the most supportive of the struggle of the Palestinian people. 

What institutions and tools can be used in existing international law order to push it closer to justice? We see calls for the prosecutor of the International Criminal Court to take steps towards individual accountability and calls for referral to the International Court of Justice to pursue Israel’s accountability.

The needed and desired change is radical but inevitable. There are two levels of it internationally: the institutional and the legal framework.

Institutionally the International Criminal Court (ICC) has a problem with transparency and independence. We have highlighted this in a letter about prosecutor Karim Khan’s approach. In the case of Palestine he is reluctant and behaves as if he were a politician. For example, he posted a photo from East Jerusalem, on the territory illegally annexed by Israel, with the annexation being a crime of aggression, and called it Israel. The ICC has so far looked almost exclusively at the accountability of the non-Western states. In the case of the UK’s conduct in Afghanistan it said such an investigation would not be in the service of justice. This seems a very politicized understanding in line with the status quo. The ICC has so far acted as a form of victor’s justice so that justice reaches those who have lost in history. If the ICC acted in the case of Palestine, it would be a historic step towards international justice.

International institutions need to go back to the principles that shaped them into being. Their lack of impartiality and their bias have to be called out. If an institution refuses to apply international law equally to all different actors, its legitimacy must be questioned. Thus far the team in charge of the Palestinian case at the ICC lacks the expertise and the funds.

At the UN the problem is that the only body with power is the Security Council, where the veto powers ensure the continuation of the colonial system. The latest fiascos should push us to demand reforms of the veto powers and expansion of the General Assembly’s power. No state can be bigger, more important or more powerful than another. Moreover, it was the General Assembly that applied the international law more progressively whether in the case of the apartheid South Africa or Algeria. But economically more powerful states continue to devalue these views.

And the changes of the legal framework?

Reading of the international law from the 1960s and 1970s can help. The states of the Global South had at the time greater voice and in 1970 the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States was adopted, while a decade earlier the Declaration on the Granting of Independence to Colonial Countries and Peoples demanded an end to alien domination, subjugation and exploitation. Both these documents have legal customary international value and they need to be taken from the shelves and used again. The language that talks about sovereignty over the natural resources, about people’s economic self-determination and recognizes people’s will has to be resurrected. These notions are needed but have not been appropriately incorporated into international law.

Otherwise, the problems will persist with how to articulate not only the domination over the Palestinian people but also how domination works and materializes. Domination violates the right of people to self-determination. This should be debated openly, listening to the states and the people of the Global South. For too long critical and Palestinian voices have been shunned aside.

These steps are not the most practical but they underline the core of the challenge. If this change does not happen, the UN will lose its legitimacy. In Jordan the majority asks why even bother with the law. It is worth reviving and ceasing this moment for a change. If it does not respond, it will lose relevance. This might open another challenge – the need to shape international politics not only through the will of states and national politicians, who happily overlook people’s fundamental rights and support racist and discriminatory politics. We are at an important junction.

Francesca Albanese, Special UN Rapporteur has in her latest report on occupied Palestinian territories introduced the concept of incarceration as the result of the Israeli apartheid and settler-colonial policies. Some argue Nakba as a Palestinian expression for ethnic cleansing should be used more. Does international law offer appropriate concepts and words to describe the reality of Palestinians?

We have enough legal concepts to navigate. However, the question remains what is recognized as a historic fact. Some critics focus on how we imagine a given crime. Genocide is linked to the World War II and the Holocaust; apartheid to South Africa. But it is those who use international law for political gain that promote these limited imaginings. On the other side, many have noted that historical comparisons are crucial if we are to learn. Naomi Klein has nicely pointed out that claiming the exceptionality of the Holocaust overlooks its parallels with the actions during the slave trade and colonialism. We have to use the existing concepts and make comparisons. What otherwise, was the point of coining the legal terms if we are unable to recognize similar events taking place?

I have worked on the submission in the case of Palestine at the International Court of Justice, with the public hearing scheduled for February. We used the apartheid framework although many feel that apartheid happened and could happen only in South Africa. Such reading is very restricting and effectively kills the term and all legal documents that criminalize apartheid.

Therefore it is not about creating new terms – the problem is lawyers who want to limit interpretations of existing international crimes. If I wished to explain the present situation, I would use the word genocide. We have seen similar events in Myanmar/Burma, Rwanda, Srebrenica and genocide scholars agree that Israel’ actions are comparable to these historical situations. I would also use the term apartheid because of the legal system and its ingrained racism. The term is a strong tool, also for Palestinians to understand and conceptualize the racialized oppression by Israel. 

Meanwhile, when we talk of Nakba, there are two main obstacles: Nakba denial and denial that Palestinians are the indigenous population of Palestine. Therefore Nakba does not carry legal importance but captures, recognizes and popularizes a historical event of ethnic cleansing and mass displacement. To deny Nakba is to deny the Palestinians’ right to exist and their history, something the Israeli education system is built upon. But this recognition is needed also to understand what second Nakba today means and represents.

However, the most useful term I think is colonisation. It shares a lot with an apartheid system. It is an alien domination and subjugation of one people by another, who deny fundamental human rights for all. Displacement, segregation, separation are its components. To understand the situation in Palestine we need to understand the history of humanity in relation to such atrocities, committed by one people against another people. We also need to understand Nakba and the history of the Palestinian people. In 1949, Israel’s membership at the UN was conditioned by its recognition of the Palestinian rights, including the right of return for the Palestinian refugees. This presupposed the recognition of Nakba as the right of return is a form of reparation after the crimes of Nakba. It is deeply ingrained in international law and fully established. Inherently linked to the right of self-determination. This will be clearly stated also during the February hearings in front of the International Court of Justice (ICJ).

Can you explain more about your role in this case and how important would it be for a separate case to be filed, based on the Convention on the Prevention and Punishment of the Crime of Genocide? Calls to the government from civil society groups for such a step have been lately rising up also in Slovenia.

Concerning ICJ and the request for its opinion on the legality of the Israeli occupation, I acted as a legal council for one of the parties that filed submissions. In international law the (il)legality of an occupation is not straightforward. Our claim states that the occupation of Palestine violates: inalienable right of Palestinians for self-determination; prohibitions of annexation; and prohibition of apartheid. The amount of evidence submitted, also by the UN bodies on illegalities and violations that occupation facilitates is unimaginable.

ICJ in 2004 decided that the separation wall and Israeli settlements in the West Bank are illegal and that other states have a duty to act towards ending this illegality and to not cooperate with it. Again, as then, ICJ will issue an advisory opinion. It is not obligatory for Israel but it is a step forward in shaping the narrative about Palestine.

On the other hand, a lawsuit based on the Convention on the Prevention and Punishment of the Crime of Genocide offers the possibility that ICJ – if it finds evidence that there is a risk of genocide – issues provisional measures. Such lawsuit has been debated for the last two months. Genocidal intent has been stated by Israeli state officials but the case would not be easy. Palestinian civil society organizations are calling on states to take this step. Malaysia has supposedly been considering it and in Jordan I will hold a seminar about it. Any debate about this in Slovenia would be greatly encouraged as it would firstly, demonstrate an alliance and, secondly, indicate a distancing from Israel’s exceptionalism. It would show consistency: as we have applied the international law against Russia, we demand its application against Israel – because no people are more equal than others. Furthermore, if Slovenia decided to join the lawsuit at ICJ it would carry the strength of a global ethos for humanity and justice. Also the deterrence impact would be greater given that we are witnessing one of the darkest moments most likely in all our lives.

As we enter this holiday period we all stand in horror, as we know that the international community will somehow “take a break” for a fortnight. And we see the Israeli message to the international community that they do not care; they will destroy civilians and civilian infrastructure and continue in their pace. They are incriminating themselves by the hour and if Slovenia takes a position recognizing the humanity of the Palestinians and the importance of the international law, this will be historic. It would recognize that justice is more important than politics and alliances. This is the urgent, grave request by the Palestinian civil society to all the states. If we learned anything during the past ordeals, it is that these communities need to be given louder voice, their will must be recognized and their requests responded to.

In 2021 you have written a paper questioning the argument of defence and underlining the domination by Israel. Your paper could be a description of September 2023. However, with the events since October we have seen also Palestinian strength and unyielding perseverance. As you write, Palestinians are allowed to be helpless victims in need of humanitarian aid or are deemed terrorists. Does armed resistance make legal arguments more complicated or should we focus on the occupation as the starting and defining framework?

International law is clear about people’s right to resistance against colonization. This is a logical rule, especially when the domination is on the level of Israel’s. More so in the case of Gaza, which has been under the illegal Israel’s blockade, run as an open-air prison since 2007 with series of Israel’s bombardments and attacks condemned by international legal community, for example by the Goldstone report in 2009. Israel has always responded bloodily to Palestinian dissent.

In international law there is a great difference between the rules to start a war and the rules on conduct of hostilities. The question of jus ad bellum answers when it is legal to start a war. The rules on conduct of hostilities demand from all parties to respect the international humanitarian law fully.

An important difference is the tactics: Hamas’ tactics is closer to guerrilla while Israel operates through a state army. International law as well as our perceptions is inherently biased and more forgiving to the actions by state actors. In Gaza, ironically, Hamas has grown with the funding and the help of actions by Israel. Nevertheless, we are witnessing asymmetrical hostilities between advanced military power and insurgent military group. As a lawyer I do not focus on the details on the ground but start from Israel’s lack of right under international law to claim self-defence on the territory it occupies. This was confirmed by the ICJ in 2004 and is in line with the UN Charter. As an occupying power, Israel has the duty to protect the population of Gaza. If attacked, it only has the right to deter the attack as an occupier. Nothing more. 

Moreover, Hamas’ demands have changed. Now its demands are foremost an end to illegalities. Israel however, strategically attacks in a decontextualised manner. It steers from the source of the problem and all the illegalities – it never starts at giving and ensuring Palestinians their rights let alone treating them as human beings. By depriving the situation of the context bloodshed continues and histories of insurgencies and historic lessons, for example from Algeria and Vietnam, are ignored. 

In the end, there is only one solution to protect both the Israelis and the Palestinians: to give justice to all, to recognize the equal rights of all people, to end the Nakba denial and to ensure the restitution and return of Palestinians. 80 percent of Gaza inhabitants are refugees from the Nakba. They have the right of return. The inevitable historical conclusion is that alien subjugation and domination must end and that all people are equal. Israel cannot run away from this. It is the only way to secure safety for all. Seen from the lens of law and not political calculations it is simple and straightforward.

You have written about reparations and we have mentioned the right of return of Palestinian refugees. What would in practice be needed to achieve justice?

Step number one would be the end of occupation of the West Bank, East Jerusalem and Gaza. Ending the Israel’s domination. Step number two would be to tackle accountability, ensure right of return and reparations that belong to all Palestinian refugees worldwide. These would not be respected in the case of the so-called two-state solution that also could never ensure economic sovereignty of the Palestinian state given the unjust division of the arable land in 1948. We need to be clear and recognize that actions of the international community in 1948 enabled and normalized Israel’s settler colonial project that displaces and subjugates indigenous people of Palestine. 

The right of return is not radical. It demands two things: firstly, annulment of Israel’s law of return that gives any Jewish person from anywhere in the world the right to come and displace a Palestinian to create a home. And secondly, to ensure Palestinian descendants can freely travel and settle or claim reparations. Many Israelis would not welcome equality for all but they need to accept that Palestinians and everybody else are people of equal humanity. We, Palestinians have the right to the land.

My great-grandfather built a beautiful home right outside of Jerusalem in 1947. His children, my grandma never got to really live in it. Sixteen years ago my grandma’s sister managed to visit the house and found a Russian family living there. We still have the deeds to that home and my family has been talking about that house for the longest time ever. There exists a legal framework for reparations. Palestinians have the deeds to lands that have been taken from them and many continue to carry their keys for the return. One of the latest Palestinian songs says we are going back. And we are going back does not have to mean violence towards anyone. It encapsulates redistribution and restitution. Yes, Israelis will have to recognize that there has been a historical wrong done by the oppressor population against the oppressed population. The oppressors will have to give up some of the unjust privileges so that the oppressed will be given their rights and that wrongs will be corrected. This is not unrealistic – this is international law. International Court of Justice has mentioned reparations in its 2004 opinion. And the right of return blurs the lines of the two states as a solution since there needs to be democratic representation and equal rights for everyone everywhere. Refusing these democratic principles exposes racist foundations. It is simple: future demands justice for everyone.

The article was also published in Slovenian language at Mešanec.

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